Smoof Blog: Archives for Nov 2004

Jack Valenti would tell you that intellectual property is an inalienable right, that congress has no right to even consider balancing it back a little towards the interests of consumers. He'll tell you that an author has an absolute right to control when, where, and how his work is used. If he slips up, he might even suggest that copyright shouldn't even have a term limit. It even seems that most Americans would agree with him. Well that just plain insane. Property rights have never been absolute in this country, even for tangible property. We have zoning laws, the civil rights act, property tax, capital gains tax, and estate tax, and immanent domain, all of which limit the absolute control that you can assert on you own property for the good of society.

If tangible property is limited, intellectual property is much more so. First of all, it expires after a "limited time". Copyright hasn't always covered derivative works. Congress has imposed compulsory licensing for musical recordings, cable TV, and internet radio. Fair use limits the exclusive rights of copyright holders. In fact, the constitution doesn't even guarantee that intellectual property must exist.It says "The Congress shall have the power . . . To Promote the Progress of Science and the useful Arts by securing for limited times to Authors and Inventors the exclusive right to their respective writings and discoveries." Congress has has the option to grant intellectual property rights, but it by no means has an obligation to do so. Furthermore, if congress does chose to grant these rights, it must be able to justify that grant in terms of "the Progress of Science and the useful Arts". (The Supreme Court seems to disagree with me here, but they have rather bizarre ways of reading the commerce clause and the second ammendment as well.) I cannot stress the importance of this enough: According to our constitution, the supreme law of our government, patents and copyrights exist only to promote the creation and spread of knowledge. They do no exist to ensure that Mr. Valenti can make a profit. They do not exist to protect the supposed inalienable right of creators to dictate how their works are used. They exist only to give creators an incentive to create. It requires a lot less then total, perpetual control over any and all usage of a creative work (absolute copyright) to give someone an incentive to create it. Would Walt Disney have not bothered to create Steamboat Wille if he thought someone might get it for free 50 years later? Would Blizzard have not bothered to write their games if they couldn't use EULA's to prevent someone from writing a compatible server? Would Hollywood just stop making movies if it were legal to make a DVD player without their license? Of course the answer is no. They would create whether they had those powers or not. Our current regime of nearly absolute copyright goes far beyond what is required to induce people to create. Inasmuch as intellectual property rights go beyond an incentive to create or spread knowledge, our constitution requires that they not exist.

Mr Valenti would probably tell you it doesn't matter what the constitution says. He would say that intellectual property is an inalienable right and if the constitution disagrees then it needs to be changed. He says physical property is an inalienable right, so why not intellectual? I have three responses to that. First of all, physical property may be inalienable, but it isn't absolute. If I make a table I have a right to that table. It's mine. But if I buy all the land in Delaware, even if I buy it all fair and square, most people would agree that property has gone too far. We don't generally look favorably on claims of kings that they own their land, and have an inalienable right to rule it. The last one to try that in our history (I'll consider pre revolutionary war English history to be "ours") was Charles I, and everyone knows how England responded to him. So physical property has limits, and so does intellectual property. Second, Mr. Valenti actually wants a lot more in the way of property rights then a table-maker gets. He wants to be able to sell his table, then tell the buyer where he can use the table, what kind of food he can put on it, whether or not he can add to it or improve it, and whether he can sell it to someone else. Third, property rights in general aren't an end in and of themselves. They exist in order to give us the freedom to live our own lives as we see fit, without unwanted interference from others. Intellectual Property just tells most people what they can't do with their own computers, tape decks, books and recordings. In my book that requires some pretty hefty justification. Promoting the progress of science and the useful arts by giving authors a way to make a living being authors seems like adequate justification to me, and it seemed adequate to the founders of our nation as well. Lining Mr. Valenti's pocket with Mickey Mouse revenues for another twenty years doesn't.